Feds seek to lock press, public out of Portland bomb trial

11/21/12 12:40 PM EST

Federal prosecutors have moved to lock the press and public out of testimony by undercover FBI personnel at the upcoming trial of an Oregon man accused of plotting to bomb a Christmas tree lighting ceremony in Portland in 2010.

In order to keep the identities of the undercover agents secret, prosecutors want to close the courtroom at Mohamed Mohamud’s trial while the agents testify. The press and public could sit in another courtroom and watch a partially-obscured video feed in which the “images” of the undercover FBI employees would not be visible.

Prosecutors also want to alter the appearance of their key witnesses—a little bit, anyway.

“The [undercover employees] may testify using a light disguise, such as changing the UCEs’ facial hair, hairstyle, or dress style,” prosecutors wrote in an Oct. 23 motion (posted here). “When the UCEs testify, only the Court, essential personnel, the jury, the defendant and his counsel, and the government’s trial team shall be present in the courtroom.”

Mohamud’s lawyers have objected to the secrecy.

“The measures sought by the government would convey information or impressions to the jury that undermine the presumption of innocence and the right to a fair trial based solely on the evidence," defense attorneys Steve Sady and Steve Wax wrote in their response (posted here). "Such restrictions have also historically been disfavored as unfairly prejudicial to the defense, because jurors who witness such precautions are likely to assume that the defendant is especially dangerous and thus guilty."

“Any disguise that would actually conceal the operatives’ identities would almost certainly obscure their facial expressions. Assessing facial expression is critical to a fact finder’s assessment of a witness’s credibility, and even to counsel’s fine-tuning of the examination of that witness,” the defense added.

The defense lawyers also noted that, regardless of whether the court authorizes any special measures to protect the FBI employees, their client could easily recognize them. “Mr. Mohamud himself, of course, has long been in a position to identify the operatives by sight, as he spent hours on end in their presence and following their directions,” the defense attorneys added.

Prosecutors are also seeking to keep the true names of the operatives from the defense on the grounds that their identities are classified. The operatives are involved in ongoing undercover investigations, the government says.

The Sixth Amendment to the U.S. Constitution guarantees defendants a public trial. Courts have also interpreted the First Amendment to require that criminal proceedings be open to the public. However, partial closures of trials have been upheld in unusual or exceptional circumstances.

The secrecy measures the government is seeking are unusual, but have been employed in several federal criminal trials in recent years. Similar measures were used to obscure the identities of Israeli government security personnel who testified against Palestinian activists at terror-finance related trials in Tampa, Chicago and Dallas. Just last month, the Supreme Court declined to take up an appeal stemming from the Dallas trial, which involved leaders of the Holy Land Foundation charity.

While measures such as trial closures, disguises and the like have been used only rarely in American courtrooms up to this point, the rationale supporting them would appear to apply in numerous cases, since undercover informants are frequently used in drug, gang and organized crime prosecutions.

U.S. District Court Judge Garr King has yet to rule on the motion. The trial for Mohamud, a naturalized U.S. citizen from Somalia, is set to get underway Jan. 15.